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1 Robert A. Rosette (Pro Hac Vice pending) Saba Bazzazieh (Pro Hac Vice pending) ROSETTE, LLP 1100 H St. N.W., Ste. 400 Washington, D.C (202) (202) rosette@rosettelaw.com sbazzazieh@rosettelaw.com Anthony Jannotta (CT Bar No ) Dentons US LLP 1301 K Street, N.W. Ste. 600, East Tower Washington, D.C (202) anthony.jannotta@dentons.com GREAT PLAINS LENDING, LLC; JOHN R. SHOTTON; CLEAR CREEK LENDING, vs. Plaintiffs, CONNECTICUT DEPARTMENT OF BANKING; HOWARD F. PITKIN, in his official capacity as the Commissioner of the Department of Banking; BRUCE ADAMS, in his official capacity as Acting Commissioner of the Department of Banking, Defendants. : : : : : : : : : : : : : : : : : Case No. SUPERIOR COURT JUDICIAL DISTRICT OF NEW BRITAIN JANUARY 23, PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

2 TABLE OF CONTENTS I. INTRODUCTION...1 II. STATEMENT OF FACTS...2 III. ARGUMENT The Court Must Issue a Temporary Injunction Enjoining Enforcement of the Department s Order to Prevent Irreparable Harm to Plaintiffs....4 A. Plaintiffs Have No Adequate Remedy At Law....5 B. Plaintiffs Will Suffer Irreparable Harm if a Temporary Injunction Is Not Granted....6 C. Plaintiffs Are Likely to Prevail On the Merits....9 i. Arms of the Tribe and Tribal Officials Enjoy the Tribe s Sovereign Immunity...10 ii. Plaintiffs Sovereign Immunity Extends to State Administrative Process, Including the Department s Order D. The Balance of Equities Tips Plainly in Plaintiffs Favor IV. CONCLUSION i PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION i

3 Case Law ii TABLE OF AUTHORITIES Allen v. Gold Country Casino, 464 F.3d 1044 (9th Cir. 2006)...11 Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84 (2010)...1,4,5 Bishop Paiute Tribe v. County of Inyo, 291 F.3d 549 (9th Cir. 2002)...14 BPC Capital Management I, LLC v. Appeal from Probate, Superior Court of Connecticut, judicial district of Fairfield, Docket No. CV (May 16, 2014, Sommer, J.)...6 Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173 (10th Cir. 2010)...11,12 Burchett v. Roncari, 181 Conn. 125, 434 A.2d 941 (1980)...5 C & L Enterprises, Inc. v. Citizen Band of Potawatomi Indian Tribe of Okla., 532 U.S. 411 (2000)...11 Cash Advance & Preferred Cash Loans v. State, 242 P.3d 1099 (Colo. 2010)...13,16 Chayoon v. Chao, 355 F.3d 141 (2d Cir. 2004)...13 Cook v. AVI Casino Enters., Inc., 548 F.3d 718 (9th Cir. 2008)...12 Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002)...16,17 Fletcher v. United States 116 F.3d 1315 (10th Cir. 1997)...12,13 Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 457, 493 A.2d 493 (1985)...10 In re CashCall, Inc., Findings of Fact, Conclusions of Law and Order (Conn. Dept. of Banking Feb. 4, 2014)...12 International Ass'n. of Firefighters, Local 786 v. Serrani, 26 Conn.App. 610, 616, 602 A.2d 1067 (1992)...4 Inyo Co. v. Paiute-Shoshone Indians of the Bishop Cmty., 538 U.S. 701 (2003)...15 Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001)...1 Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523 U.S. 751 (1998)...10,11 Kizis v. Morse Diesel Int l, 260 Conn. 46 (2002)...13 Lac Du Flambeau Band of Lake Superior Chippewa Indians, et al. v. Norton, 327 F.Supp.2d 995 (W.D. Wis. 2004)...1 Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)...16 Miami Tribe of Okla. v. Walden, 206 F.R.D. 238 (D. Ill. 2001)...1 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION ii

4 Michigan v. Bay Mills Indian Community, 134 S. Ct (2014)...10,11 Michigan Bell Telephone Co. v. MFS Intelenet of Michigan, Inc., 16 F.Supp.2d 828 (W.D. Mich. 1998)...7 Middletown Rancheria of Pomo Indians v. Workers Comp. Appeals Bd., 60 Cal.App.4th 1340 (1998)...14 Native American Distributing v. Seneca-Cayuga Tobacco Co., 546 F. 3d 1288 (10th Cir. 2008)...13 New London v. Perkins, 87 Conn. 229 (1913)...6 Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505 (1991)...10,11,16 Olcott v. Pendleton, 128 Conn. 292 (1941)...4 People v. Miami Nation Enters., 166 Cal. Rptr. 3d 800 (2014)...15 POP Radio, LP v. News American Marketing In-Store, Inc., 49 Conn. Sup. 566 (2005)...4 Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001)...7 Romanella v. Hayward, 933 F. Supp. 163 (D. Conn. 1996)...12 Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970)...8 Seneca-Cayuga Tribe v. Oklahoma, 874 F.2d 709 (10th Cir. 1989)...7 Seneca Nation of Indians v. Paterson, 2010 WL (W.D.N.Y. Oct. 14, 2010)...7 Scoville v. Ronalter, 162 Conn. 67, 291 A.2d 222 (1971)...4 State of Colorado, et al v. Cash Advance, et al. (Case No. 05CV1143) (Order dated February 13, 2012)...16 The Connecticut Association of Clinical Laboratories v. Connecticut Blue Cross, Inc., 31 Conn. Supp. 110 (1983)...6 Tom Doherty Assocs., Inc. v. Saban Entm t, Inc., 60 F.3d 27 (2nd Cir. 1995)...6, 8 Transportation General, Inc. v. Commissioner of Transportation, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV (January 17, 1995, Maloney, J.)...9 Tri-State Generation and Transmission Ass n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 356 (10th Cir. 1986)...8 United States v. James, 980 F.2d 1314 (9th Cir. 1992)...14 United States v. Michigan, 534 F. Supp. 668 (W.D. Mich. 1982)...7 United States v. Wheeler, 435 U.S. 313 (1978)...10 Wyandotte v. Kansas City, 200 F.Supp.2d 1279 (D.Kan. 2002)...1 Zych v. Wrecked and Abandoned Vessel, 960 F.2d 665 (7th Cir. 1992) iii PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION iii

5 Statutes Conn. Gen. Statutes, et seq....1 Minn. Stat , subd. 3 (2010)...15 Other Sources Cohen s Handbook of Federal Indian Law 4.01[1][a] at Zeke Faux, Payday Lending by Tribe Targeted by Connecticut, BLOOMBERG, Jan. 6, 2015, /payday-lending-by-tribe-targeted-by-connecticut.html iv PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION iv

6 I. INTRODUCTION Plaintiffs Great Plains Lending, LLC ( Great Plains ), John R. Shotton, and Clear Creek Lending, Inc. ( Clear Creek ) hereby file this Ex Parte Application for Temporary Injunction ( Application ) seeking to enjoin the enforcement of an agency decision issued by Defendant Connecticut Department of Banking (the Department ), dated January 6, 2015 and titled Order to Cease and Desist and Order Imposing Civil Penalty (the Order ). 1 This Application is filed concurrently with Plaintiffs Complaint brought pursuant to Connecticut Uniform Administrative Procedure Act ( UAPA ), Conn. Gen. Statutes, et seq., challenging the Department s jurisdiction over Plaintiffs and the validity of the Order following the Department s disregard of binding legal precedent. Plaintiffs respectfully request an order from this Court granting its Application, pending resolution of Plaintiffs Complaint, on grounds that: (1) Plaintiffs have no adequate remedy at law; (2) Plaintiffs will suffer irreparable harm without an injunction; (3) Plaintiffs will likely prevail on the merits; and (4) the balance of equities tip in Plaintiffs favor. Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, (2010). Because the Department has issued an Order that has caused and will continue to cause irreparable injury to the Plaintiffs the elected Chairman of the Otoe-Missouria Tribe of Indians, a federally-recognized Indian tribe ( Tribe ) and two of the Tribe s wholly owned and operated businesses this Court Great Plains Lending, LLC, Clear Creek Lending and John R. Shotton, bring this action for the limited purpose of contesting the Department s jurisdiction in the underlying administrative proceeding. Such limited or special appearance shall not be construed as waiving any arguments that the Plaintiffs have with regard to their sovereign immunity or the Department s lack of jurisdiction. Indeed, courts have routinely recognized that a sovereign s limited appearance in legal proceedings for the purpose of seeking dismissal for lack of jurisdiction does not waive any claims to sovereign immunity. See e.g., Kansas v. United States, 249 F.3d 1213, 1220 (10th Cir. 2001); Zych v. Wrecked and Abandoned Vessel, 960 F.2d 665, (7th Cir. 1992); Lac Du Flambeau Band of Lake Superior Chippewa Indians, et al. v. Norton, 327 F.Supp.2d 995, 1000 (W.D. Wis. 2004); Wyandotte v. Kansas City, 200 F.Supp.2d 1279, 1287 (D.Kan. 2002); Miami Tribe of Okla. v. Walden, 206 F.R.D. 238 (D. Ill. 2001). 1 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

7 must take action to prevent enforcement of the Order, pending resolution of the Complaint filed concurrently herewith. II. STATEMENT OF FACTS Great Plains and Clear Creek are wholly owned and operated entities of the Otoe- Missouria Tribe of Indians, a federally-recognized Indian tribe (the Tribe ). See Affidavit of John R. Shotton filed concurrently herewith ( Shotton Aff. ) at 2. As with other sovereigns, the Tribe has governed itself according to Tribal laws, regulations and norms since its inception. As a federally-recognized Tribe maintaining all inherent attributes of sovereignty, the Tribe enacted the Constitution and Bylaws of the Otoe-Missouria Tribe of Indians as the supreme law governing all affairs of the Tribe ( Constitution ). The Constitution specifically appointed the Otoe-Missouria Tribal Council as the supreme governing body of the Tribe with the authority to enact laws and ordinances on behalf of the Tribe. Id. at 4-5. Plaintiff John R. Shotton serves as the elected Chairman and leader of the Tribal Council, pursuant to the Tribe s Constitution, and also serves as the Secretary/Treasurer of Great Plains and Clear Creek under the explicit authority vested to him by Tribal law. Id. at 2. In acting on behalf of the Tribal government as well as Great Plains and Clear Creek, Chairman Shotton has acted and continues to act strictly in his official capacity, pursuant to Tribal law and for the benefit of the Tribe and its citizens. Id. at 2-3. Great Plains and Clear Creek were created as arms of the Tribe pursuant to the Otoe- Missouria Tribe of Indians Limited Liability Company Act ( LLC Act ) and the Otoe-Missouria Tribe of Indians Corporation Act ( Corporation Act ). Id. at They are wholly owned entities of the Tribe and are regulated by the Tribe pursuant to the Tribe s Consumer Finance Services Regulatory Commission Ordinance. Id. at 14. The Tribe s LLC Act and Corporation 2 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

8 Act provide that all companies wholly owned by the Tribe shall be considered to be instrumentalities and arms of the Tribe, and their officers and employees considered officers and employees of the Tribe. It was contemplated and intended that these companies would be created for the purpose of Tribal economic development and to aid in addressing issues of public health, safety, and welfare. Id. at 11. The Tribe retains full control over Great Plains and Clear Creek s operations: the directors, charged with managing the companies, may be removed at any time by the Tribal Council, with or without cause. Id. at 13. Pursuant to Tribal law as well as state and federal precedent, as wholly owned Tribal entities, Great Plains and Clear Creek are entitled to all of the privileges and immunities enjoyed by the Tribe, including, but not limited to, immunity from suit, except to the extent that the Tribe has unequivocally waived that immunity. Id. at 12. On October 24, 2014, Howard Pitkin, the Commissioner of the Department (the Commissioner ) issued a Temporary Order to Cease and Desist, Order to Make Restitution, Notice of Intent to Issue Order to Cease and Desist, Notice of Intent to Impose Civil Penalty, and Notice of Right to Hearing ( Initial Order ) to Plaintiffs. Id. at 17. The Initial Order, which alleges violations of various provisions of the Connecticut General Statutes, acknowledges that Great Plains and Clear Creek were formed pursuant to Tribal law and that John R. Shotton serves as the Tribe s elected Chairman. Id., Ex. H, p. 4, 3. Nowhere in the Initial Order does it allege that Chairman Shotton acted in any manner whatsoever outside of his official capacity as the elected leader of the Tribe and the designated and appointed officer of Great Plains and Clear Creek. Id. at 18. On November 12, 2014, Plaintiffs filed a Notice of Motion and Motion to Dismiss, together with a Memorandum of Points and Authorities in Support thereof (the Motion to Dismiss ). See Id., 19-20; see also, Complaint, Ex. E thereto. In its Motion to Dismiss, 3 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

9 Plaintiffs argued that, under well-settled principles of federal Indian law, Plaintiffs are immune from the Department s enforcement action and that the administrative proceeding must be dismissed for lack of personal and subject matter jurisdiction. The Department subsequently filed an objection to the Plaintiffs Motion to Dismiss, and the Plaintiffs submitted a brief in reply. Id. On January 6, 2015, the Commissioner issued his Ruling on Motion to Dismiss, denying Plaintiffs Motion to Dismiss, and concurrently issued the Order. Shotton Aff. 23, Ex. I thereto. The Order purports to require the Plaintiffs to cease and desist from violating various sections of the Connecticut General Statutes. 4 The Order further purports to impose civil penalties on each of the Plaintiffs, including a $700,000 penalty upon Great Plains, a $700,000 penalty upon John R. Shotton in his personal capacity, and a $100,000 penalty upon Clear Creek, each to be paid on or before February 6, III. ARGUMENT 1. The Court Must Issue a Temporary Injunction Enjoining Enforcement of the Department s Order to Prevent Irreparable Harm to Plaintiffs. The primary purpose of a temporary injunction is to preserve the status quo and protect the moving party from immediate and irreparable harm until the merits of the case have been determined after a full trial. POP Radio, LP v. News American Marketing In-Store, Inc., 49 Conn. Sup. 566, 569 (2005), citing Olcott v. Pendleton, 128 Conn. 292, 295 (1941). The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court... Scoville v. Ronalter, 162 Conn. 67, 74, 291 A.2d 222 (1971); see also International Ass'n. of Firefighters, Local 786 v. Serrani, 26 Conn.App. 610, 616, 602 A.2d 1067 (1992). In general, a court may, in its discretion, exercise its equitable power to order a PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

10 temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law. Aqleh, 299 Conn. at 96 (citation omitted; internal quotation marks omitted.). A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm without an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tips in its favor. Id. Because Plaintiffs clearly meet the standard for injunctive relief, a temporary injunction staying enforcement of the Order must issue to protect Plaintiffs from immediate and irreparable harm. A. Plaintiffs Have No Adequate Remedy At Law. No cause of action exists specifically claiming a violation of tribal sovereignty and absolute right of self-governance and self-determination, thus Plaintiffs have no adequate remedy at law. An adequate remedy at law is one which is specific and adapted to securing the relief sought conveniently, effectively and completely. Burchett v. Roncari, 181 Conn. 125, 129, 434 A.2d 941 (1980). Because damages or monetary relief are insufficient and cannot effectively remedy the Department s affront to the Tribe s sovereignty and Plaintiffs rights, injunctive relief and specifically a temporary injunction is proper and should be issued. Injunctive relief is required to enjoin Defendants from unlawfully asserting regulatory jurisdiction over a sovereign government, its wholly-owned businesses, and its elected leadership. The Department s attempts to substantially interfere with the ability of triballyowned and operated entities to conduct their own businesses by demanding that they cease and desist from engaging in business, and pay civil penalties to the Department, constitutes a significant disturbance to tribal self-government that cannot be repaired with money damages. Such interference with an entity's ability to conduct business constitutes harm which damages 5 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

11 cannot restore. See Tom Doherty Assocs., Inc. v. Saban Entm t, Inc., 60 F.3d 27, 37 (2nd Cir. 1995) (finding irreparable harm in part because the right to continue a business is not measurable entirely in monetary terms ). In addition, the Order purports to assert jurisdiction over Chairman Shotton in his personal capacity, the elected leader of the Tribe, by demanding he cease from carrying out certain activities and pay a substantial monetary penalty. If the Department is not enjoined as Plaintiffs request, Chairman Shotton may be deterred from naturally fulfilling his duties as the leader of his Tribe for fear of further administrative action, despite the Order s complete lack of basis. Shotton Aff. 26. Accordingly, monetary damages are not sufficient to compensate Plaintiffs for the harm caused by the Department, and Plaintiffs have no adequate remedy at law. As such, injunctive relief, and temporary injunction is warranted and proper. B. Plaintiffs Will Suffer Irreparable Harm if a Temporary Injunction Is Not Granted. Where an injury is of such a nature that it cannot be adequately compensated in damages, or cannot be measured by any pecuniary standard, it is irreparable.... Whether damages are to be viewed by a court of equity as irreparable or not depends more upon the nature of the right which is injuriously affected than upon the pecuniary measure of the loss suffered. The Connecticut Association of Clinical Laboratories v. Connecticut Blue Cross, Inc., 31 Conn. Supp. 110, (1983) (internal quotations omitted.), citing New London v. Perkins, 87 Conn. 229, 235 (1913). To demonstrate irreparable harm, the moving party must identify a noncompensable injury for which there is no legal measure of damages, or none that can be determined with a sufficient degree of certainty... BPC Capital Management I, LLC v. Appeal from Probate, Superior Court of Connecticut, judicial district of Fairfield, Docket No. 6 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

12 CV (May 16, 2014, Sommer, J.), citing Michigan Bell Telephone Co. v. MFS Intelenet of Michigan, Inc., 16 F.Supp.2d 828 (W.D. Mich. 1998). The Department s unlawful attempts to assert regulatory authority over Plaintiffs will cause irreparable harm in that it constitutes significant interference with tribal self-government. Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, (10th Cir. 2001) (finding irreparable injury where state regulation created the prospect of significant interference with [tribal] self-government ); Seneca-Cayuga Tribe v. Oklahoma, 874 F.2d 709, 716 (10th Cir. 1989) (finding irreparable injury where state regulation threatened loss of revenues and jobs and created the prospect of significant interference with [tribal] self-government ); see also Seneca Nation of Indians v. Paterson, 2010 WL , at *2 (W.D.N.Y. Oct. 14, 2010) ( Where, as here, enforcement of a statute or regulation threatens to infringe upon a tribe s right of sovereignty, federal courts have found the irreparable harm requirement satisfied. ); United States v. Michigan, 534 F. Supp. 668, 669 (W.D. Mich. 1982) (protecting tribal rights under treaty to the fullest extent possible encouraged the concept of tribal sovereignty, and the denial of those rights is presumed to cause irreparable harm). Allowing the Department to proceed with enforcement of the Order will result in an unprecedented finding that state administrative agencies can, by their own fiat, abrogate the sovereign immunity of tribal entities and officials, in direct contravention with well-settled federal and state legal precedent. The failure to grant Plaintiffs Application for Temporary Injunction will result in a substantial injury to Plaintiffs and such an injury to tribal self-government is unquantifiable and cannot be reversed. In addition, the Department s unlawful assertion of regulatory jurisdiction over Plaintiffs has directly impacted their ability to conduct business. Threatening the viability of a business 7 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

13 constitutes irreparable harm. See Tri-State Generation and Transmission Ass n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 356 (10th Cir. 1986), citing Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970) (loss of right to continue business supports claim of irreparable injury); Tom Doherty Assocs., Inc. v. Saban Entm t, Inc., 60 F.3d at 37 (finding irreparable harm in part because the right to continue a business is not measurable entirely in monetary terms. ). Moreover, the Department s unlawful prosecution of Chairman Shotton personally and its foreseeable attempts to collect an unlawful judgment against him, if not enjoined, will undoubtedly cause him irreparable harm. Chairman Shotton was, at all times, acting in his official capacity and was therefore cloaked with sovereign immunity against any state administrative action including the underlying action initiated by the Department absent a clear and unequivocal waiver of this immunity or Congressional abrogation of said immunity. Indeed, nowhere in underlying action did the Department ever allege because it could not allege that the Chairman was acting in any capacity other than his official capacity. Nevertheless, the Department has conveniently ignored this very material fact, resulting in the issuance of a substantial civil monetary judgment for which the Chairman is now liable. Under no legally-cognizable theory can or should the Chairman be held personally responsible in this case. In addition to affecting the Chairman s personal financial well-being, the Order also affects him in carrying out his day-to-day duties and responsibilities as the leader of a sovereign nation, the members of which are fully aware that their Chairman has been impacted in such an outrageous manner. The Order has already resulted in reputational harm from publication of the baseless alleged personal liability resulting from the Department s Order. Shotton Aff., 26. Similarly, it is reasonable to assume the chilling effect this baseless Order may have on any 8 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

14 Tribal official working on behalf of the government as it has the effect of negatively impacting not only their personal well-being, but also the significant Tribal governmental functions the leader of a sovereign nation serves on a day to day basis. By way of its administrative proceeding and resulting Order, the Department has made a point of harming the reputation of Chairman Shotton and the Tribe. Indeed, the very day that the Department issued its Order (and prior to the Order being made publically available on the Department s website), Bloomberg published an article touting that the Department imposed fines upon the Chairman and the Tribe's two companies (and, not surprisingly, omitted Plaintiffs previous jurisdictional challenge to the Department s efforts), featuring a quote from the Department's general counsel, stating that "[w]e shouldn't have to bend to the will of any tribe that creates a company." 2 It is clear that the Department is motivated to move forward as quickly as possible with and enforcement action related to the Order and to continue on a media campaign related thereto. This reputational and business injury to the Plaintiffs is irreparable and will persist absent injunctive relief from this Court. Because the Order has caused and will continue to cause unquantifiable harm to the Tribe s governmental operations, to the continued viability of the Tribal businesses, and to Chairman Shotton personally issuance of a temporary injunction is critically necessary and should be granted. C. Plaintiffs Are Likely To Prevail On the Merits. In determining the likelihood that the appellant will prevail, the court need only find that there is a reasonable degree of probability of success. Transportation General, Inc. v. Commissioner of Transportation, Superior Court, judicial district of Hartford-New Britain at 2 See Zeke Faux, Payday Lending by Tribe Targeted by Connecticut, BLOOMBERG, Jan. 6, 2015, 9 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

15 Hartford, Docket No. CV (January 17, 1995, Maloney, J.), citing Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 457, 493 A.2d 493 (1985). Plaintiffs two-count Complaint squarely arises from the Department s unlawful assertion of authority over Plaintiffs on the basis of their sovereign immunity from suit. Pursuant to binding federal and state legal precedent, Plaintiffs can easily demonstrate that they share in the Tribe s sovereign immunity from unconsented suit including in state administrative actions similar to the Department s instant enforcement action. Accordingly, Plaintiffs will likely succeed on the merits of their underlying claims and a temporary injunction should be issued by this Court. i. Arms of the Tribe and Tribal Officials Enjoy the Tribe s Sovereign Immunity. Indian tribes are domestic dependent nations that exercise inherent sovereign authority. Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991). The right of tribes to govern their members and territories flows from a preexisting sovereignty limited, but not abolished, by their inclusion within the territorial bounds of the United States.... Once recognized by the political body of the United States, a tribe retains its sovereignty until Congress acts to divest that sovereignty. Cohen s Handbook of Federal Indian Law 4.01[1][a] at 207. Thus, unless and until Congress acts, the tribes retain their historic sovereign authority. Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2030 (2014), citing United States v. Wheeler, 435 U.S. 313, 323 (1978). The Supreme Court has historically viewed sovereign immunity as a basic aspect of tribal sovereignty. See, e.g., Okla. Tax Comm n, supra, 498 U.S. at 509. As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.... [T]ribal immunity is a matter of federal law and is not subject to 10 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

16 diminution by the States. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523 U.S. 751, 760 (1998). Indian tribes are not states. They have a status higher than that of states. They are subordinate and dependent nations possessed of all powers [except] to the extent that they have expressly been required to surrender them by the superior sovereign, the United States. Breakthrough Management Group, Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1182 (10th Cir. 2010). Unless and until Congress exercises this power, state governments have no authority to bring a suit against an Indian tribe. Michigan v. Bay Mills Indian Community, supra, 134 S.Ct. at ( Thus, we have time and again treated the doctrine of tribal immunity as settled law and dismissed any suit against a tribe absent congressional authorization (or a waiver). ). Tribal sovereign immunity extends beyond Indian tribes themselves to entities that are deemed arms of the tribe. See Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006); cf. McGinty v. New York, 251 F.3d 84, 95 (2nd Cir. 2001); Breakthrough Management Group, Inc., supra, 629 F.3d at (holding that tribal economic development authority and tribally-owned casino were arms of the tribe). These tribal instrumentalities are afforded sovereign immunity from civil suit unless Congress has clearly abrogated that immunity or if the Tribe has issued a clear and unequivocal waiver of immunity. See, e.g., C & L Enterprises, Inc. v. Citizen Band of Potawatomi Indian Tribe of Okla., 532 U.S. 411, 418 (2000); Oklahoma Tax Comm n, 498 U.S. at 509. In determining whether a tribal entity is an arm of the tribe, courts will consider whether the entity was created by tribal law; whether the tribe owns and controls the entity; the purpose of the tribal entity; whether the entity s economic activity benefits the tribe; and whether the tribe intended for the entity to have arm-of-the-tribe status. Id. at PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

17 ; Cook v. AVI Casino Enters., Inc., 548 F.3d 718, (9th Cir. 2008); Breakthrough Mgmt. Group., Inc., supra, 629 F.3d at Indeed, in a previous case involving lending entities that were concededly not owned by a tribal government, the Department itself recognized that legitimate Native American lending entities possessed a legal claim to sovereign immunity. See In re CashCall, Inc., Findings of Fact, Conclusions of Law and Order at *17 (Conn. Dept. of Banking Feb. 4, 2014) ( Neither CashCall, Inc. nor Western Sky Financial, LLC could legally claim the immunity extended to an Indian tribe. To conclude otherwise would do a disservice to legitimate Native American lending entities. ). (Emphasis added.) Here, there is no dispute or question that Great Plains and Clear Creek are arms of the Tribe. They were each created by tribal law. Shotton Aff., The Tribe wholly owns and controls both entities. Id. The purpose for creating each entity was to advance the Tribe s economic development and to aid in addressing issues of public health, safety, and welfare. Id. at 11. The economic activity of the entities benefits the Tribe, as all profits are allocated to the Tribe. Shotton Aff., 2, 7. And finally, the Tribe clearly intended each entity to have arm-ofthe-tribe status. Shotton Aff., Further, Great Plains and Clear Creek s arm-of-the-tribe status is uncontested in these proceedings. See, Complaint, Ex D., p. 4, 1 ( Great Plains is a limited liability company organized under the laws of the Otoe-Missouria Tribe.... ))). Therefore, as arms of the Tribe, Great Plains and Clear Creek are entitled to share in the Tribe s sovereign immunity and are immune from the Department s unlawful administrative enforcement action. Similarly, tribal officials acting within their official capacity are also entitled to tribal sovereign immunity. Romanella v. Hayward, 933 F. Supp. 163, 167 (D. Conn. 1996). Fletcher 12 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

18 v. United States 116 F.3d 1315, 1324 (10th Cir. 1997); Cook v. AVI Casino Enterprises, Inc., 548 F. 3d at ; Native American Distributing v. Seneca-Cayuga Tobacco Co., 546 F. 3d 1288, 1296 (10th Cir. 2008). The Department cannot circumvent tribal immunity by merely naming officers or employees of the Tribe when the complaint concerns actions taken in defendants official or representative capacities and the complaint does not allege they acted outside the scope of their authority. ). Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004). This immunity is not afforded only to high-ranking tribal officials, but to any tribal employee acting in their representative capacity and within the scope of their authority. Kizis v. Morse Diesel Int l, 260 Conn. 46, 54 (2002) (citation omitted). Determination of whether a tribal official is acting within the scope of [his or her] authority requires reference only to tribal law, as actions allegedly violating state law are not necessarily outside the scope of a tribal official s lawful authority because that authority is defined by the sovereign tribe, not by state law. Cash Advance & Preferred Cash Loans v. State, 242 P.3d 1099, 1112 (Colo. 2010). Chairman Shotton, the elected leader of the Tribe s governing body its Tribal Council is very clearly vested with immunity from suit. The Department acknowledges in its Notice that the administrative action was brought against Chairman Shotton in his capacity as a tribal official acting within the scope of his authority. See Complaint, Ex D, p. 4, 3 ( At all relevant times hereto, Shotton served as Chairman.... Shotton also approved the Operating Agreement of Great Plains and serves as Great Plains Secretary/Treasurer. ). Further, all of the business activities pertaining to the Department s Order and related to Chairman Shotton could relate only to Chairman Shotton s official duties as Secretary/Treasurer of Great Plains and Clear Creek. Indeed, all of his duties in connection with these businesses are explicitly delegated to him under Tribal law and are undertaken strictly for the benefit of the Tribe. In neither the 13 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

19 Notice, nor its subsequent decisions does Department does not allege that Chairman Shotton acted outside the scope of his official capacity. The Department explicitly omits such allegations because they simply cannot be furthered. With no allegation, let alone evidence to the contrary, the record clearly demonstrates that at all relevant times, Chairman Shotton acted within the scope of his authority as a Tribal official. Accordingly, Chairman Shotton is clearly protected by tribal sovereign immunity and the Department s action against him personally was baseless, improper, and barred by state, federal and Tribal law. Because the extension of the Tribe s sovereign immunity from suit extends to all Plaintiffs, the Department erred in its issuance of the Order. Plaintiffs have a reasonable likelihood of success on the merits of the underlying Complaint demonstrating the Department s arbitrary and capricious exercise of jurisdiction, and Plaintiffs plainly meet this standard for temporary injunction. ii. Plaintiffs Sovereign Immunity Extends to State Administrative Process, Including the Department s Order. Tribal sovereign immunity extends beyond state court proceedings to all aspects of the judicial process. See United States v. James, 980 F.2d 1314, 1320 (9th Cir. 1992) (holding that tribe was protected from having to comply with a subpoena duces tecum issued in a federal criminal prosecution in which the tribe was not a party). Such immunity further extends to state administrative process, including a state agency s authority to administratively enforce its decisions. See, e.g., Middletown Rancheria of Pomo Indians v. Workers Comp. Appeals Bd., 60 Cal.App.4th 1340, (1998) (holding that tribe had sovereign immunity from workers compensation process and that Worker s Compensation Appeals Board lacked jurisdiction over tribe to enforce laws based on sovereign immunity); Bishop Paiute Tribe v. County of Inyo, PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

20 F.3d 549, 558 (9th Cir. 2002), rev d on other grounds sub nom. Inyo Co. v. Paiute-Shoshone Indians of the Bishop Cmty., 538 U.S. 701 (2003)(holding that tribe s sovereign immunity prevented execution of search warrant issued by superior court against tribal entity). Contrary to established case law, however, the Department asserted that its Order is a contested case that is somehow distinct from a suit for purposes of asserting sovereign immunity in defense against a state enforcement action. This is without basis in law or reasoned analysis. 3 The Order is a blatant attempt to circumvent settled and binding precedent to wrongfully assert jurisdiction over Plaintiffs. In doing so, the Commissioner disregarded abundant case law and two identical attempted state enforcement actions brought against enterprises owned and operated by the Miami Tribe and Santee Sioux Nation brought by California and Minnesota. See, Shotton Aff., 21. In People v. Miami Nation Enters., 166 Cal. Rptr. 3d 800 (2014), the California Department of Corporations brought suit against entities owned and operated by the Miami Tribe that were providing short-term loans to California citizens over the Internet. Upon a finding that the Miami Tribe s entities were arms of the Tribe, the California Court of Appeals rightly held that the State s administrative enforcement action was barred by unwaived sovereign immunity. Id. at 817. Similarly, in an administrative enforcement action nearly identical to the present proceedings, in July 2012, the Minnesota Department of Commerce issued against Great Plains a Notice of an Order for Hearing, Order for Prehearing Conference and Statement of Charges alleging that Great Plains violated a Minnesota statute regarding consumer loans, Minn. Stat , subd. 3 (2010). After the Tribe advised the Minnesota Department of Commerce that it was immune from such an enforcement 3 The Commissioner does engage in a haphazard examination of the Black s Law Dictionary definition of suit, but fails to reasonably note that a Department enforcement action that alleges to impose injunctive and civil penalties, after reviewing pursuant to a judicial standard of review and questionable legal analysis must, in effect, constitute an adversarial action to which sovereign immunity is rightfully asserted as a defense. 15 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

21 action due to its sovereign immunity, the charges were thereafter dismissed. See Shotton Aff., 21. Finally, Plaintiffs previously cited and explained the reasoning behind the first substantive review of tribal lending enterprises by state jurisdictions, and their right to share in the tribe s sovereign immunity Cash Advance & Preferred Cash Loans v. State of Colorado, ex. rel. Suthers, 242 P.3d 1099 (Colo.2010) ( U.S. Supreme Court precedent is clear that tribal sovereign immunity applies to state law enforcement actions ). Id., citing Oklahoma Tax Commission v. Citizen Bank Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505 (1991); Mescalero Apache Tribe v. Jones, 411 U.S. 145, (1973). In Cash Advance, after the Colorado Attorney General s Office sought to enforce state law against entities owned by the Miami Tribe and the Santee Sioux Nation, and upon assertion of sovereign immunity, the court determined that the entities were arms of the tribe. Following remand from the Colorado Supreme Court, the trial court granted the tribes motion to dismiss, holding that as wholly owned entities of the tribes created pursuant to tribal law, the lending entities at issue were indeed entitled to sovereign immunity immunity which had not been waived or congressionally abrogated with respect to the State s enforcement actions. State of Colorado, et al v. Cash Advance, et al. (Case No. 05CV1143) (Order dated February 13, 2012). The trial court noted that state enforcement actions were equivalent to suits, to which federally recognized tribes are immune. Id. at *9. Additionally, in determining that contested cases are not suits, the Commissioner arbitrarily and capriciously disregarded the reasoning of Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002), in which the Supreme Court held that state sovereign immunity precluded the Federal Maritime Commission ( FMC ) from adjudicating a 16 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

22 private party s complaint against a state for alleged violations of federal admiralty law. Id. at Federal Maritime Commission relied on the overwhelming similarities between FMC adjudication and civil litigation, including the rules of practice and procedure, the use of an administrative law judge, and the fact that the orders are non-self-executing. Id. at Based on the Commissioner s treatment of the proceeding and attempt at meaningful analysis, it is impossible to reasonably conclude that the Department s action is not a suit for purposes of asserting sovereign immunity. The Commissioner treats this contested case as a typical court proceeding, expressly adopting the standard applied in Connecticut Superior Court when reviewing a motion to dismiss. Order at 3 ( When a court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.... ). Moreover, the Commissioner invokes the difference between the right to demand compliance with state laws and the means available to enforce them, maintaining that because his demand for compliance is essentially non-enforceable, it is outside of any judicial process. Order at 8. However, this line of reasoning, as stated above, was rejected wholesale in Federal Maritime Commission, as both are not self-executing. As the United States Supreme Court has held, tribal sovereign immunity very clearly applies to state law enforcement actions. As such, it was arbitrary and capricious for the Department to hold otherwise in its Order. Binding and persuasive case law make clear that Plaintiffs share in the Tribe s sovereign immunity from suit, which squarely includes improper actions brought by the Department. Because Plaintiffs can so clearly demonstrate the error of the Commission s Order, and have a reasonable likelihood of success on the merits of the PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

23 Complaint, Plaintiffs meet this requirement for temporary injunctive relief. Accordingly, such relief should be granted. D. The Balance of Equities Tips Plainly in Plaintiffs Favor. Because of the enormous harm that would befall Plaintiffs through the Department s actions, the balance of equities tips considerably in Plaintiffs favor and this Court should grant the Application for Temporary Injunction. If the Court grants Plaintiffs Application, the Plaintiffs can move forward with the legal proceedings in the instant action, without concern that the Department will attempt to enforce civil penalties over which it lacked jurisdiction to impose in the first instance. This is particularly true for Chairman Shotton, who, in addition to the substantive duties and responsibilities he must shoulder as Tribal Chairman, will not have to carry the apprehension of a $700,000 personal fine looming over him during the pendency of his appeal. On the other hand, the denial of an injunction will inflict irreparable harm on Plaintiffs and will expose Chairman Shotton personally to an enormous financial liability which he should never have been subject to in the first place. In contrast, an injunction will have no detrimental impact on the Department, which would only need to temporarily refrain from purporting to assert regulatory authority over Plaintiffs until resolution of the pending Complaint. By the Department s own admission, it cannot do anything more itself to compel Plaintiffs compliance with its Order, thus the potential harm to the Department and its overreach of authority is nonexistent. Because the balance of equities tips clearly in Plaintiffs favor, the Court should grant the Application for Temporary Injunction. IV. CONCLUSION Based upon the foregoing, Plaintiffs respectfully request that the Application be granted on grounds that Plaintiffs: (1) have no adequate remedy at law; (2) are likely to suffer irreparable 18 PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

24 harm without injunctive relief; (3) are likely to prevail on the merits of the underlying Complaint; and (4) the balance of equities tips strongly in Plaintiffs favor. Thus, an order temporarily enjoining the Department from enforcement of its Order, pending resolution of the underlying Complaint, is both necessary and appropriate. Dated: January 23, By: RESPECTFULLY SUBMITTED, ROSETTE, LLP /s/ Saba Bazzazieh Saba Bazzazieh (Pro Hac Vice Pending) Rosette, LLP 1100 H St., NW, Suite 400 Washington, D.C (480) sbazzazieh@rosettelaw.com /s/ Anthony Jannotta Anthony Jannotta (CT Bar No ) Dentons US LLP 1301 K. Street, NW Suite 600, East Tower Washington, D.C (202) anthony.jannotta@dentons.com PLAINTIFFS EX PARTE APPLICATION FOR TEMPORARY INJUNCTION

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105 Robert A. Rosette (Pro Hac Vice pending) Saba Bazzazieh (Pro Hac Vice pending) ROSETTE, LLP 1100 H St. N.W., Ste. 400 Washington, D.C (202) (202) rosette@rosettelaw.com sbazzazieh@rosettelaw.com Anthony Jannotta (CT Bar No ) Dentons US LLP 1301 K Street, N.W. Ste. 600, East Tower Washington, D.C (202) anthony.jannotta@dentons.com GREAT PLAINS LENDING, LLC; JOHN R. SHOTTON; CLEAR CREEK LENDING, vs. Plaintiffs, CONNECTICUT DEPARTMENT OF BANKING; HOWARD F. PITKIN, in his official capacity as the Commissioner of the Department of Banking; BRUCE ADAMS, in his official capacity as Acting Commissioner of the Department of Banking, Defendants. : : : : : : : : : : : : : : : Case No. SUPERIOR COURT JUDICIAL DISTRICT OF NEW BRITAIN JANUARY 23, CERTIFICATION OF ANTHONY JANNOTTA PURSUANT TO CONN. PRACTICE BOOK 4-5 I, Anthony Jannotta, being first duly sworn upon oath, hereby depose and state: 1. I make this Certification in support of Plaintiffs Application for Temporary Injunction filed in the above-captioned action. The following facts are based on my own 1 CERTIFICATION OF ANTHONY JANNOTTA

106 personal knowledge, except those stated upon information and belief, and as to all such facts stated upon information and belief, I am informed and believe that the same are true. If called to testify, I could and would do so competently in a court of law. 2. I am an attorney licensed and in good standing in the State of Connecticut (State Bar No ). I currently serve as co-counsel for Plaintiffs Great Plains Lending, LLC, ( Great Plains ) John R. Shotton ( Shotton ), and Clear Creek Lending ( Clear Creek and, together with Great Plains and Shotton, the Plaintiffs ) in the above-captioned action. 3. On or about October 24, 2014, the Connecticut Department of Banking ( Department ) issued a Temporary Order to Cease and Desist, Order to Make Restitution, Notice of Intent to Issue Order to Cease and Desist, Notice of Intent to Impose Civil Penalty, and Notice of Right to Hearing ( Initial Order ) against Great Plains, Clear Creek, and Shotton in his individual capacity alleging violations of Connecticut law. 4. On November 10, 2014, Plaintiffs filed with the Department a motion to dismiss evidencing the Department s lack of jurisdiction based upon the Tribe s and its entities enjoyment of sovereign immunity. 5. After the Department filed its opposition and Plaintiffs filed their reply, on January 6, 2015, Commissioner Howard F. Pitkin of the Connecticut Department of Banking issued its Ruling denying the motion to dismiss. Subsequently, the Department issued an Order to Cease and Desist and Order Imposing Civil Penalty (collectively, the Final Order ). 6. On January 22, 2015, I spoke with Perry Zinn-Rowthorn, Deputy Attorney General, for the State of Connecticut, Office of the Attorney General, via telephone to advise that my clients intended to file the above-captioned action and seek ex parte temporary injunctive relief to stay enforcement of the Final Order, pending resolution of this matter. After conferring 2 CERTIFICATION OF ANTHONY JANNOTTA

107 1 2 3 with his client, Mr. Zinn-Rowthorn stated that the Department would not agree to stay the Final Order, pending the instant appeal. I declare under penalty of perjury under the laws of the State of Connecticut that the foregoing is true and correct. /s/ Anthony Jannotta Anthony Jannotta 3 CERTIFICATION OF ANTHONY JANNOTTA